[2025] KEBPRT 185 (KLR)

Uchumi Supermarket Limited v Hot Spot Coffee Lounge Limited (Tribunal Case E530 of 2024) [2025] KEBPRT 185 (KLR) (26 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 185 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E530 of 2024

P Kitur, Member

February 26, 2025

Between

Uchumi Supermarket Limited

Landlord

and

Hot Spot Coffee Lounge Limited

Tenant

Ruling

1. The matter is coming up for a Ruling on the Notice of Preliminary Objection dated 24th January 2025 filed by the Respondent in objection to the Applicant’s Reference dated 6th May 2024. The Preliminary Objection was raised on the following grounds:-i.That the Reference is incompetent, incurable defective and the same offends the provisions of law.ii.That the Reference is defective, wanting and ought to be struck out.iii.That the Orders sought by the Applicant are not maintainable in the circumstances.iv.That the Reference as filed is vexatious, scandalous and an abuse of the Court process and is therefore ripe for dismissal.v.That the Reference offends the provisions of section 6 and section 12 of the Landlord and Tenant (Shops, Hotel and Catering Establishments? Act, Cap 301.

2. The criteria for considering a preliminary objection are well established. A preliminary objection must only raise pure points of law. The principles that the Court must apply in deciding the merits of the Preliminary Objection were outlined by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 where the court stated:-“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the Court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”At page 701 Sir Charles Newbold, P added:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion ...”

3. Similarly, the Supreme Court in the case of Hassan Ali Joho & another v Suleiman Said Shabal & 2 others SCK Petition No 10 of 2013 [2014] eKLR held that:-“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”

4. For a Preliminary Objection to succeed, the following tests must be met: Firstly, it should raise a pure point of law; secondly, it assumes that all facts pleaded by the other side are correct; and finally, it cannot be raised if any fact needs to be ascertained or if it involves the exercise of judicial discretion.

5. Clearly, a preliminary objection must be based on a settled and straightforward point of law, so that its application to undisputed facts leads to only one conclusion: that the facts are incompatible with the point of law.

6. In the instant suit, the listed grounds in the Preliminary Objection raised by the Respondent can be regarded as prayers seeking to declare the Applicant's Reference substantively defective. These are questions of fact that ought to be addressed in opposition to the Reference rather than being clothed as pure points of law.

7. As established earlier, a preliminary objection cannot be raised where facts are to be ascertained or where the court is called upon to exercise judicial discretion. The issues alluded to by the Respondent are contentious facts that need to be established and cannot serve as the basis for a preliminary objection.

8. In this regard, I am guided by the holding in the case of Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR) where the Supreme Court stated as follows:“Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”

9. The improper filing of preliminary objections has been frowned upon by our superior courts as they do nothing but occasion delay, needlessly increase costs and even waste judicial time. In the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra), Sir Charles Newbold opined:“The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.”

10. This is evidently a clear case of an improper raising of a preliminary objection and has served to unnecessarily delay the matter herein and increase costs.

11. In conclusion, I find that the Preliminary Objection dated 24th January 2025 to be without merit for it is not founded on pure points of law, and the same is hereby dismissed.

12. Costs are awarded to the Landlord assessed at Kshs. 10,000/=

13. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 26TH DAY OF FEBRUARY 2025 IN THE PRESENCE OF MS. KINUTHIA FOR THE LANDLORD AND SHIKANDA FOR THE TENANT.HON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNAL